1. When reviewing a motion to suppress, the appellate court determines whether the factual
underpinnings of the trial court's decision are supported by substantial competent
evidence. However, the ultimate legal conclusion drawn from those facts is a legal
question requiring the appellate court to apply a de novo standard of review.

2. The standard of review on a motion for a judgment of acquittal in a criminal case is
sufficiency of the evidence.

3. A conviction of even the gravest offense may be sustained by circumstantial evidence.

4. If there is any evidence tending to establish the corpus delicti of the offense charged
against the accused, then it is the duty of the trial court to submit the question of whether
the offense occurred to the jury.

5. Identity of the perpetrator is not part of the corpus delicti.

6. A custodial interrogation occurs when a person who has been taken into custody or
otherwise deprived of his or her freedom is questioned.

John W. Thurston and Troy V. Huser, of Huser Law Offices,
P.A., of Manhattan, for appellant.

Katharine J. Jackson, assistant city attorney, and Matthew Richter,
city prosecutor, for appellee.

Before RULON, C.J., MARQUARDT and HILL, JJ.

MARQUARDT, J.: Carl Feril appeals his conviction for one count of driving under the
influence of alcohol (DUI). We affirm.

In March 2004, Officer Steve Fritzson was on patrol when he received radio contact from
a neighboring jurisdiction. Officers in that jurisdiction observed a white Ford truck with Texas
plates driving without headlights in an area near Officer Fritzson's location. Officer Fritzson
testified that he located the truck at a convenience store within a few minutes of hearing the radio
call.

Officer Fritzson observed the driver climbing into the truck's cab. Officer Fritzson
approached the driver and informed him of the report about someone driving without headlights.
Feril told the officer that he was not from the area and had been driving without headlights for a
short distance.

During the conversation with Feril, Officer Fritzson observed lethargic movements,
bloodshot eyes, and an odor of alcohol. Feril admitted that he had been drinking. Officer Fritzson
administered several field sobriety tests which Feril failed to complete in a satisfactory manner.
Ultimately, Feril was arrested and taken into custody. While in custody, Feril provided a sample
for a breath alcohol test which registered 0.180.

Feril was charged with one count of DUI, second offense. The municipal court found him
guilty, and Feril appealed to the district court. After a bench trial, the district court found that the
uncontroverted evidence proved Feril was guilty as charged. Feril received a $1,000 fine and was
sentenced to serve 5 days in jail, with a 1-year term of probation. Feril appeals his conviction.

Prior to trial, Feril filed a motion to suppress evidence claiming that Officer Fritzson did
not have reasonable suspicion to justify a stop. The district court held an evidentiary hearing and
concluded that the interaction between Feril and Officer Fritzson was voluntary. The motion to
suppress was denied.

On appeal, Feril argues that he was not free to leave once he was approached by Officer
Fritzson. Feril contends that since Officer Fritzson had no first-hand knowledge that he was
driving, he was not justified in approaching Feril's vehicle.

When reviewing a motion to suppress, the appellate court determines whether the factual
underpinnings of the trial court's decision are supported by substantial competent evidence.
However, the ultimate legal conclusion drawn from those facts is a legal question requiring the
appellate court to apply a de novo standard of review. The appellate court does not reweigh the
evidence. State v. Green, 32 Kan. App. 2d 789, 792, 89 P.3d 940, rev.
denied 278 Kan. 849
(2004).

After the district court rendered its verdict, Feril filed a motion for acquittal arguing that
the City of Manhattan (City) failed to establish the corpus delicti of the crime. Feril claimed that
a prima facie showing of corpus delicti must be made independent of a confession. The trial court
heard arguments from counsel and ruled that the City was only required to prove elements that
would show that a crime was committed. The trial court denied the motion.

On appeal, Feril renews his claim that the City's prima facie showing of corpus delicti
must be made independent of his confession. Feril claims that there was no evidence he either
owned or operated the vehicle, because it was parked when he was arrested. Feril contends that
he should not have been convicted without competent evidence which corroborated his
admission of driving.

On appeal, the reviewing court must decide whether a rational factfinder could have
found the accused guilty beyond a reasonable doubt. The standard of review on a motion for a
judgment of acquittal in a criminal case is sufficiency of the evidence. State v.
Wiggett, 273 Kan.
438, 443, 44 P.3d 381 (2002).

Kansas law on corpus delicti is very consistent; a conviction of even the gravest offense
may be sustained by circumstantial evidence. In order to establish corpus delicti, the extrajudicial
confession of a criminal defendant must be corroborated by other evidence tending to show that
the crime was committed. It need not be corroborated as to the person who committed the crime
since identity of the perpetrator is not a part of the corpus delicti and may be established by an
extrajudicial confession alone. State v. Bradford, 254 Kan. 133, 139, 864 P.2d 680
(1993).

No appellate court in this state has been called upon to evaluate corpus delicti within the
framework of the crime of DUI. However, the matter has been taken up by several other
jurisdictions. In City of Easley v. Portman, 327 S.C. 593, 596, 490 S.E.2d 613 (Ct.
App. 1997),
the South Carolina Court of Appeals ruled that to satisfy the corpus delicti of DUI, the State need
only prove that "someone drove the automobile." The court followed up that
reasoning in State v.
McCombs, 335 S.C. 123, 126, 515 S.E.2d 547 (Ct. App. 1999), by noting: "'If there is any
evidence tending to establish the corpus delicti of the offense charged against the
accused, then it
is the duty of the trial court to submit the question of whether the offense occurred to the jury.'"

In the instant case, Officer Fritzson testified that he received radio contact from a
neighboring jurisdiction that a white Ford truck with an extended cab and Texas plates was
driving without headlights. That information satisfied the corpus delicti of driving. The portion
of the corpus delicti involving intoxication was directly observed by Officer Fritzson, who
smelled the alcohol and saw Feril's bloodshot eyes, as well as his failure to complete the field
sobriety tests.

Identity of the perpetrator is not part of the corpus delicti. Feril's extrajudicial confession
to Officer Fritzson that he was driving is enough to justify a conviction for the DUI offense. See
Bradford, 254 Kan. at 139.

The Texas license plates distinguished Feril's truck from any number of white Ford
vehicles on the road. In addition, Feril presented a Texas driver's license, and Officer Fritzson
saw Feril climbing into the driver's side of the truck's cab. These facts alone provide sufficient
circumstantial evidence to prove that Feril was the driver spotted by officers in another county.

Officer Fritzson's verbal exchange with Feril was not a custodial interrogation. Feril's
response to Officer Fritzson's comment was voluntary. A custodial interrogation occurs when a
person who has been taken into custody or otherwise deprived of his or her freedom is
questioned. See State v. Gooden, 22 Kan. App. 2d 271, Syl. ¶ 3, 915 P. 2d
169, rev. denied 260
Kan. 998 (1996). Feril had not been taken into custody, nor was he deprived of his freedom.
Officer Fritzson was justified in stopping Feril. Feril's conviction is affirmed.